“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” lampooned Anatole France.
Criminal appeal of the petitioner pends in this Court and he has obtained an order for bail in his favour “to the satisfaction of the Chief Judicial Magistrate”. The direction of this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs 10,000 be produced which, in actual impact, was a double denial of the bail benefit.
For one thing the miserable mason, the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity. Affluents do not befriend indigents. For another, the magistrate made an odd order refusing to accept the surety ship of the petitioner’s brother because he and his assets were in another district.
Geographic allergy at the judicial level makes mockery of equal protection of the laws within the territory of India. India is one and not a conglomeration of districts, untouchably apart.
When this Court’s order for release was thus frustrated by magisterial intransigence the prisoner moved this Court again to modify the original order “to the extent that petitioner be released on furnishing surety to the tune of Rs 2,000 or on executing a personal bond”.
From this factual matrix three legal issues arise
(1) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a nonbailable offence either as undertrial or as convict who has appealed or sought special leave?
(2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and
3) Is it within the power of the Court to reject a surety because he or his estate is situate in a different district or State?
The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata, may well lie the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity.
There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means.
There is no definition of bail in the Code although offences are classified as bailable and non-bailable.
According to the American Jurisprudence, there is power in the court to release the defendant without bail or on his own recognizance. Likewise, the definition of bail as given in Webster’s Third Year International Dictionary: “The process by which a person is released from custody”.
The concept of bail has a long history and deep roots in English and American law. Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the event of non-appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court.
The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
The legal literature on bail jurisprudence lends countenance to the contention that bail, loosely used, is comprehensive enough to cover release on one’s own bond with or without sureties.
Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between ‘bail’ and ‘own bond without sureties’. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence ‘is prepared to give bail’.
Here, ‘bail’ suggests ‘with or without sureties’. And, ‘bail bond’ in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are hauled into a far-off court with obligation for frequent appearance:
‘Bail’ there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between bail and bond without sureties.
Section 445 suggests, especially when read with the marginal note, that deposit of money will do duty for bond ‘with or without sureties’. Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without sureties. Superficially viewed, it uses the words ‘bail’ and ‘own bond’ as antithetical, if the reading is literal. Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read ‘bail’ as including only cases of release with sureties will stultify the sub-section; for then, an accused released on his own bond without bail, i.e. surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word ‘bail’ to include ‘own bond’ loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or potential, may be released by the court to further the ends of justice and nothing in Section 441(1) compels a contrary meaning.
Section 441(2) and (3) use the word ‘bail’ generically because the expression is intended to cover bond with or without sureties.
The slippery aspect is dispelled when we understand the import of Section 389(1):
389(1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
The court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse off than a convict or that the power of the court to release increases when the guilt is established. It is not the court’s status but the applicant’s guilt status that is germane. That a guilty man may claim judicial liberation, pro tempore without sureties while an undertrial cannot is a reductio ad absurdem.
Likewise, the Supreme Court’s powers to enlarge a prisoner, as the wide words of Order 21 Rule 27 (Supreme Court Rules) show, contain no limitation based on sureties. Counsel for the State agrees that this is so, which means that a murderer, concurrently found to be so, may theoretically be released on his own bond without sureties while a suspect, presumed to be innocent, cannot. Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with greater circumspection.
The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing the draftsman’s golden rule:
In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand.
If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty, if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, surety ship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The hornet’s nest of Part III need not be provoked if we read ‘bail’ to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe judicial release from custodia juris.
Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigents’ rights, we hold that bail covers both—release on one’s own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.
Even so, poor men – Indians are, in monetary terms, indigents – young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances – put whatever reasonable conditions you may.
It shocks one’s conscience to ask a mason like the petitioner to furnish sureties for Rs 10,000.
To add insult to injury, the magistrate has demanded sureties from his own district! What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies.
What law prescribes surety is from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland.
We mandate the magistrate to release the petitioner on his own bond in Rs 1,000.
We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organisations, should prevail for bail bonds to ensure that the ‘bailee’ does not flee justice.